Experimental Punishments

The Cruel and Unusual Punishments Clause prohibits, under its original meaning, punishments that are unjustly harsh in light of longstanding prior practice. The Clause does not prohibit all new punishments; rather, it directs that when a new punishment is introduced it should be compared to traditional punishments that enjoy long usage. This standard presents a challenge when the government introduces a new method of punishment, particularly one that is advertised as more “progressive” or “humane” than those it replaces. It may not always be obvious, for example, how to compare a prison sentence to a public flogging, or death by lethal injection to death by hanging. When the new method of punishment is introduced, it is often an experimental punishment whose constitutional status is not immediately clear. This Article shows how usage over time clarifies the constitutional status of experimental punishments by revealing two types of data that may not be available at the time the punishment is adopted. First, the degree of stable reception the punishment achieves over time indicates whether society has accepted the punishment as consistent with the overall tradition. The Eighth Amendment is premised on the idea that long usage is the most reliable method of determining what is cruel and what is not. The longer a practice is used, and the more universally it is received, the more likely it is to comport with the demands of justice. On the other hand, failure to achieve long usage may be powerful evidence that a punishment is cruel. Second, usage over time can reveal more clearly how harsh the effects of the punishment are in comparison to traditional punishments. Innovations in punishment such as long-term solitary confinement, involuntary sterilization, and three-drug lethal injection all appeared “progressive” and “humane” when first adopted, but usage over time has shown their effects to be unjustly harsh in comparison with the practices they have replaced

Incapacitation Through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity

This year marks the tenth anniversary of California\u27s enactment of the nation\u27s first chemical castration law. This law requires certain sex offenders to receive, as part of their punishment, long-term pharmacological treatment involving massive doses of a synthetic female hormone called medroxyprogesterone acetate (MPA). MPA treatment is described as chemical castration because it mimics the effect of surgical castration by eliminating almost all testosterone from the offender\u27s system. The intended effect of MPA treatment is to alter brain and body function by reducing the brain\u27s exposure to testosterone, thus depriving offenders of most (or all) capacity to experience sexual desire and to engage in sexual activity. The procedure also carries severe side effects. Despite numerous predictions that this law would be quickly struck down as cruel and unusual, it remains on the books, and six additional states have followed California\u27s lead with chemical castration laws of their own. Moreover, we are currently facing a new wave of legislative efforts to impose chemical or surgical castration as a condition for sex offenders\u27 release from prison. The Supreme Court has identified the following questions as being key to a determination of whether a punishment is inherently cruel within the meaning of the Eighth Amendment: (1) Whether it violates the dignity of man, which is the basic concept underlying the Eighth Amendment; (2) Whether it violates evolving standards of decency; (3) Whether it involves the unnecessary and wanton infliction of pain - that is, pain that completely fails to further either retributive, deterrent, incapacitative or rehabilitative goals; and (4) Whether it involves torture or barbarous methods of punishment, such as drawing and quartering, burning at the stake, or physical castration. This essay will argue that the most effective and appropriate way to determine the relationship between these interpretive principles is to refer them back to the text of the Eighth Amendment, and particularly to the word cruel. Cruel is generally taken to mean indifference to or pleasure in another\u27s distress. As this definition indicates, a cruel punishment is not necessarily the same thing as a punishment that fails to further a penological purpose; nor is it necessarily the same thing as a punishment that is not acceptable under current standards of decency. Rather, the word cruel implies a certain relationship between the punisher and the person punished: an attitude that the suffering of the offender is either unimportant, or is something to be positively enjoyed. In other words, a cruel punishment is one that treats the offender as though he or she were not a human person with a claim to our concern as fellow persons, but as a mere animal or thing lacking in basic human dignity. Because chemical castration is designed both to shackle the mind and painfully cripple the body of sex offenders, this essay will argue, it is doubly cruel, and should be struck down as a violation of the Eighth Amendment

Death, Desuetude, and Original Meaning

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law. This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago

Is Solitary Confinement a Punishment?

The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding in recent decades, treating the imposition of solitary confinement as though it were a mere act of administrative discretion. This Essay asks whether the Medley Court or the modern Court is correct as a matter of constitutional law and concludes that the Medley Court is correct

The Illusory Eighth Amendment

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect. This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation. A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation. Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication. This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation. When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning. Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules. The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it

The Original Meaning of Unusual : The Eighth Amendment as a Bar to Cruel Innovation

In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court\u27s Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court\u27s treatment of the Cruel and Unusual Punishments Clause as embarrassing, ineffectual and incoherent, a mess, and a train wreck. The framers of the Bill of Rights understood the word unusual to mean contrary to long usage. Recognition of the word\u27s original meaning will precisely invert the evolving standards of decency test and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than shifting and nebulous notions of societal consensus and contemporary standards of decency. This shift in focus will tie the Court\u27s Eighth Amendment jurisprudence more firmly to the text and make the Cruel and Unusual Punishments Clause a better source of protection for criminal defendants against the whims of temporarily enflamed public opinion. Finally, it will permit the Court to refocus its attention away from traditional punishments that are already on the way out and toward the much graver danger posed by legislative attempts to enact cruel innovations in punishment

Youth Matters: \u3ci\u3eMiller v. Alabama\u3c/i\u3e and the Future of Juvenile Sentencing

In the Supreme Court\u27s latest Eighth Amendment decision, Miller v. Alabama, the Court held that statutes authorizing mandatory sentences of life in prison with no possibility of parole are unconstitutional as applied to offenders who were under eighteen when they committed their crimes. This short essay examines several themes presented in Miller, including the constitutional significance of youth and science, the legitimacy of mandatory life sentences and juvenile transfer statutes, and the conflict between “evolving standards of decency” and the Supreme Court’s “independent judgment.” This essay also introduces important articles by Richard Frase, Carol Steiker and Jordan Steiker, Franklin Zimring and Stephen Rushin, Elizabeth Scott, Barry Feld, and Jeremiah Bourgeois. These articles were all contributions to the Ohio State Journal of Criminal Law\u27s symposium on Miller v. Alabama

Punishment Without Culpability

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor. The Supreme Court’s inability to place meaningful constitutional limits on this aspect of legislative power is often described as a failure of courage or will. This Article will demonstrate that it is actually a failure of memory. Prior to the turn of the twentieth century, the Supreme Court’s jurisprudence was animated by two traditional common law ideas: (1) that there are real moral limits to what the government can do, and (2) that the most reliable way to tell whether the government has transgressed those limits is to analyze the challenged action in light of longstanding practice. In the first half of the twentieth century, the Supreme Court rejected these ideas in favor of instrumentalism, an approach to jurisprudence that sees law as a mere instrument through which government experts can solve social problems in light of new scientific insights. As a result, for several decades the Court seemed to approve a limitless legislative power to define and punish crime, which the Court treated as just another form of regulation. This approach did not last. Criminal law does not merely regulate: it imposes moral condemnation on the offender in the name of the community. In recent decades, the Supreme Court’s constitutional criminal jurisprudence has moved toward reassertion of the old common law constraints, imposing either moral or precedential limits on the power of the legislature to define and punish crime. But because the Court no longer understands the relationship between morality and tradition, these efforts have mostly failed. This Article will suggest that the only way to develop a constitutional criminal jurisprudence that is coherent, just, and duly respectful of the legislature’s primacy in defining and punishing crime is to return to the common law synthesis of morality and tradition that underlies the constitutional law of crime

Rethinking Proportionality Under the Cruel and Unusual Punishments Clause

Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered the claim that proportionality review is illegitimate in light of the Eighth Amendment’s original meaning. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self contradictory. As a result, a controlling plurality of the Court has insisted that proportionality review be limited to a narrow class of cases. This area of doctrine needs rethinking. This Article is the first to establish that the Cruel and Unusual Punishments Clause was originally meant to prohibit excessive punishments as well as barbaric ones, and that proportionality review is therefore unquestionably legitimate. This Article also demonstrates that proportionality is a retributive concept, not a utilitarian one. Punishments are unconstitutionally excessive if they are harsher than the defendant deserves as a retributive matter. Finally, this Article shows that proportionality should be measured primarily in relation to prior punishment practice. The proposed approach will align the Court’s proportionality jurisprudence more closely with the core purpose of the Cruel and Unusual Punishments Clause and will enable the Court to expand proportionality review to a much larger class of cases